Sanobanu Nazirbhai Mirza & others versus Ahmedabad
Municipal Transport Service, reported in 2013 AIR SCW
5800, has specifically held that compensation can be enhanced
while deciding the appeal, even though prayer for enhancing the
compensation is not made by way of appeal or cross
appeal/objections. It is apt to reproduce para 9 of the judgment
herein:
“9. In view of the aforesaid decision of this
Court, we are of the view that the legal
representatives of the deceased are entitled
to the compensation as mentioned under the
various heads in the table as provided
above in this judgment even though certain
claims were not preferred by them as we are
of the view that they are legally and
legitimately entitled for the said claims.
Accordingly we award the compensation,
more than what was claimed by them as it
is the statutory duty of the Tribunal and the
appellate court to award just and
reasonable compensation to the legal
representatives of the deceased to mitigate
their hardship and agony as held by this
Court in a catena of cases.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 537 of 2008
Decided on: 18.12.2015
United India Insurance Company Ltd. …Appellant.
Versus
Sh. Talaru Ram and others …Respondents.
Coram
The Hon’ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.
Citation;2016(3) ALLMR(JOURNAL)30
Appellantinsurer has thrown challenge to the
judgment and award, dated 26.06.2008, made by the Motor
Accident Claims Tribunal, Kinnaur at Rampur Bushahr,
H.P. (for short "the Tribunal") in M.A.C. Petition No. 79 of 2004,
titled as Talaru Ram and another versus Sh. Vinod Kumar and
another, whereby compensation to the tune of ` 2,54,000/ with
interest @ 7½% per annum from the date of filing of the petition
till its realization came to be awarded in favour of the claimants
and the appellantinsurer was saddled with liability (for short
"the impugned award").
2. The claimants and the ownerinsured of the
offending vehicle have not questioned the impugned award on
any count, thus, has attained finality so far it relates to them.
3. Appellantinsurer has questioned the impugned
award on various grounds taken in the memo of appeal.
Precisely, the challenge to the impugned award is on the ground
that the claim petition was not maintainable for the reason that
deceasedDharam Pal, son of the claimants, was brutally
murdered.
4. A very important question of law has been raised in
the memo of appeal, which was also raised before the Tribunal.
5. In order to determine the issue, it is necessary to
give brief resume of the case, the womb of which has given birth
to the appeal in hand:
6. Claimants filed a claim petition before the Tribunal
under Section 163A of the Motor Vehicles Act, 1988 (for short
"the MV Act") and claimed compensation to the tune of ` ten
lacs, as per the breakups given in the claim petition.
7. It has been averred in the claim petition that
deceasedDharam Pal was running an auto electrician shop in
Village Kingal, was travelling in a newly purchased Maruti Van,
which, later on, was registered as HP020190, was being driven
by Shri Santosh Kumar. The driver as well as the deceasedDharam
Pal were murdered in between Oddi and Narkanda and
their dead bodies were thrown in Thachru Nallah. Further
averred that the deceased was earning ` 6,000/ from the
profession of auto electrician and also helping his parents in
agricultural vocation.
8. The claimants have stated in para 22 of the claim
petition that the accident was outcome of use of motor vehicle.
It is apt to reproduce para 22 of the claim petition herein:
"22. Cause of accident. : Sh. Dharam
Pal deceased was travelling
as passenger and illfated vehicle from
Kingal to Narkand & when he was
going in the vehicle was murdered
arised out of the use of the said vehicle
alognwith the driver of the vehicle and
his dead bodies was thrown in Thacru
Nala in between Oddi and Narkanda.
The murdered must has some enmity
with the driver."
9. The driver of the offending vehicle was also
murdered, that is why, he was not arrayed as partyrespondent
in the array of respondents.
10. The insurer and the ownerinsured of the offending
vehicle resisted the claim petition on the grounds taken in the
memo of objections.
11. Following issues came to be framed by the Tribunal
on 29.04.2005:
"1. Whether Sh. Dharam Pal had died on
account of use of motor vehicle No. HP02
0190? OPP
2. If issue No. 1 is proved to what amount
of compensation and from whom are the
petitioners entitled to? OPP
3. Whether this Tribunal has no
jurisdiction to proceed with the trial of the
claim petition? OPR2
4. Whether vehicle No. HP020190 was
under the insurance cover of respondent
No. 2, if not with what effect? OPR2
5. Relief."
12. The claimants examined Shri Sadanand as PW1,
Shri Rajesh Bharti as PW3 and claimantTalaru Ram himself
appeared in the witness box as PW2. The respondents in the
claim petition have examined Shri Ashok Negi, Shri Shyam Lal,
Shri Tek Singh, Shri Sudhir Pandey and Shri Ganga Ram as
their witnesses. Parties have also placed on record copies of
final report submitted under Section 173 of the Code of Criminal
Procedure (for short "CrPC"), FIR, postmortem report, birth
certificate and other documents including the documents of the
offending vehicle, i.e. registration certificate, insurance cover
note and the route permit. All the documents stand exhibited.
Issues No. 1 and 3:
13. After scanning the evidence, oral as well as
documentary, the Tribunal held that the accident was outcome
of use of the vehicle.
14. Learned Senior Counsel appearing on behalf of the
appellant argued that the accident was not out of use of motor
vehicle, but was a crime a brutal murder. Thus, the claim
petition was not maintainable and the findings returned by the
Tribunal on issue No. 1 are not legally correct.
15. It is admitted fact that the driver and deceasedDharam
Pal were murdered in the vehicle. The ownerinsured
of the vehicle has specifically averred that the death of the
deceased and the driver was because of criminal assault. FIR
No. 74/2004, dated 26.08.2004, was lodged at Police Station
Kumarsain. Investigation was conducted and final police report
was presented against accused Rajinder Singh Thakur, Vijay
Thakur and Surjit Khachi for commission of offence under
Sections 302 and 392 read with Section 34 of the Indian Penal
Code (for short "IPC").
16. The perusal of final report, Ext. PW1/A, too
discloses that the driver, deceasedDharam Pal and the accused
persons were travelling in the vehicle, had enmity with the
driver, killed him and also killed Dharam Pal in the vehicle.
The crime was committed with a fine lace like thread inside the
vehicle and the bodies were thrown in the nallah.
17. The police report and other evidence on the file have
remained unrebutted. Even, learned senior counsel for the
appellant has not been able to show that the crime was not
committed in the vehicle.
18. The question is whether the death/murder of
Dharam Pal is out of use of vehicle in the given circumstances of
the case? The answer is in the affirmative for the following
reasons:
19. The legal representatives of the driver of the vehicle
have not made any claim. The claim, which is being adjudicated
upon, is by the legal representatives/heirs/dependents of
deceasedDharam Pal.
20. As discussed hereinabove and as recorded by the
Tribunal, the entire offence was committed inside the vehicle,
thus, out of 'use of motor vehicle'. The claimants have filed
claim petition under Section 163A of the MV Act and not under
Section 166 of the MV Act. In a claim petition filed under
Section 166 of the MV Act, the claimants have to plead and
prove that the accident was outcome of rash and negligent
driving of the vehicle by its driver. Sine qua non for maintaining
the claim petition under Section 166 of the MV Act is the
rashness and negligence on the part of the driver of the vehicle,
but in a claim petition under Section 163A of the MV Act,
rashness and negligence is not a sine qua non and it is also not
even an ingredient in the said provision.
21. It is worthwhile to reproduce Section 163A of the MV
Act herein:
"163A. Special provisions as to payment
of compensation on structured formula
basis. (1) Notwithstanding anything
contained in this Act or in any other law for
the time being in force or instrument having
the force of law, the owner of the motor
vehicle or the authorised insurer shall be
liable to pay in the case of death or
permanent disablement due to accident
arising out of the use of motor vehicle,
compensation, as indicated in the Second
Schedule, to the legal heirs or the victim, as
the case may be.
Explanation. For the purposes of this subsection,
"permanent disability" shall have the
same meaning and extent as in the
Workmen's Compensation Act, 1923 (8 of
1923).
(2) In any claim for compensation under subsection
(1), the claimant shall not be required
to plead or establish that the death or
permanent disablement in respect of which
the claim has been made was due to
any wrongful act or neglect or default of the
owner of the vehicle or vehicles concerned or
of any other person.
(3) The Central Government may, keeping in
view the cost of living by notification in the
Official Gazette, from time to time amend the
Second Schedule."
22. While going through this provision of law, the words
used are 'use of motor vehicle'.
23. The Court has to be cautious and has to draw a fine
distinction. If the motive, criminal intention and conspiracy was
to kill Dharam Pal, perhaps the remedy was anywhere else.
24. The facts, the final report and other circumstances
do disclose that the prima facie motive and intention of the
accused persons were to kill the driver of the vehicle and not
Dharam Pal. Thus, Dharam Pal became the victim because of
travelling in the vehicle and his death is outcome of 'use of motor
vehicle'.
25. The Apex Court in the case titled as Shivaji
Dayanu Patil and another versus Vatschala Uttam More,
reported in 1991 ACJ 777, has interpreted the words and
expression 'use of motor vehicle' and held that these have a wide
connotation. It is apt to reproduce paras 31 to 36 of the
judgment herein:
"31. The words "arising out of" have been
used in various statutes in different
contexts and have been construed by
Courts widely as well as narrowly, keeping
in view the context in which they have been
used in a particular legislation.
32. In Heyman v. Darwins Ltd., 1942 AC
356, while construing the arbitration
clause in a contract, Lord Porter expressed
the view that as compared to the word
'under', the expression 'arising out of' has
a wider meaning. In Union of India v.
E.B. Aaby's Rederi A/S, 1975 AC 797,
Viscount Dilhorne and Lord Salmon
stated that they could not discover any
difference between the expression "arising
out of" and "arising under" and they
equated "arising out of" in the arbitration
clause in a Charter Party with "arising
under."
33. In Samick Lines Co. Ltd. v. Owners of
the Antonis P. Lemos, (1985) 2 WLR 468,
the House of Lords was considering the
question whether a claim for damages
based on negligence in tort could be
regarded as a claim arising out of an
agreement under section 20(2)(1)(h) of the
Supreme Court Act, 1981 and fell within
the admiralty jurisdiction of the High
Court. The words "any claim arising out of
any agreement relating to the carriage of
goods in a ship or to the use of hire of a
ship" in section 20(2)(1)(h) were held to be
wide enough to cover claims, whether in
contract or tort arising out of any
agreement relating to the carriage of goods
in a vessel and it was also held that for
such an agreement to come within
paragraph (h), it was not necessary that
the claim in question be directly connected
with some agreement of the kinds referred
to in it. The words "arising out of" were
not construed to mean "arising under" as
in Union of India v. E.B. Aaby's A/S,
1975 AC 797, which decision was held
inapplicable to the "The words" injury
caused by or ar ising out construction of S.
20(2)(1)(h) and it was observed by Lord
Brandon:
"With regard to the first point, I
would readily accept that in certain
contexts the expression 'arising out
of' may, on the ordinary and natural
meaning of the words use, be the
equivalent of the expression 'arising
under', and not that of the wider
expression 'connected with'. In my
view, however, the expression
'arising out of' is, on the ordinary
and natural meaning of the words
used, capable, in other contexts, of
being the equivalent of the wider
expression 'connected with'. Whether
the expression 'arising out of' has the
narrower or the wider meaning in
any particular case must depend on
the context in which it is used."
Keeping in view the context in which the
expression was used in the statute it was
construed to have the wider meaning viz.
'connected with'.
34. In the context of motor accidents the
expressions 'caused by' and 'arising out of'
are often used in statutes. Although both
these expressions imply a causal
relationship between the accident resulting
in injury and the use of the motor vehicle
but they differ in the degree of proximity of
such relationship. This distinction has
been lucidly brought out in the decision of
the High Court of Australia in
Government Insurance Office of N.S.W. v.
R.J. Green & Lloyd Pty. Ltd., 1967 ACJ
329 (HC, Australia), wherein Lord
Barwick, C.J., has stated :
"Bearing in mind the general
purpose of the Act I think the
expression' arising out of' must be
taken to require a less proximate
relationship of the injury to the
relevant use of the vehicle than is
required to satisfy the words caused
by'. It may be that an association of
the injury with the use of the vehicle
while it cannot be said that that use
was causally related to the injury
may yet be enough to satisfy the
expression 'arise out of' as used in
the Act and in the policy."
35. In the same case, Windeyer, J. has
observed as under :
"The words 'injury by or arising out
of the use of the vehicle' postulate a
causal relationship between the use
of the vehicle and the injury. 'Caused
by' connotes a 'direct' or 'Proximate'
relationship of cause and effect.
'Arising out of' extends this to a
result that is less immediate; but it
still carries a sense of consequence."
36. This would show that as compared to
the expression 'caused by', the expression
'arising out of' has a wider connotation.
The expression 'caused by' was used in
sections 95(1)(b)(i) and (ii) and 96(2)(b)(ii)
of the Act. In section 92A, Parliament,
however, chose to use the expression
'arising out of' which indicates that for the
purpose of awarding compensation under
section 92A, the causal relationship
between the use of the motor vehicle and
the accident resulting in death or
permanent disablement is not required to
be direct and proximate and it can be less
immediate. This would imply that
accident should be,connected with the use
of the motor vehicle but the said
connection need not be direct and
immediate. This construction of the
expression "arising out of the use of a
motor vehicle" in section 92A enlarges the
field of protection made available to the
victims of an accident and is in
consonance with the beneficial object
underlying the enactment."
26. While going through the judgment (supra), one
comes to an inescapable conclusion how the accident and
injury/death have relationship with use of motor vehicle.
27. The Apex Court in another case titled as Rita Devi
(Smt) and others versus New India Assurance Co. Ltd.
and another, reported in (2000) 5 Supreme Court Cases 113,
has discussed the scope of Section 163A of the MV Act and the
expression 'death due to accident arising out of the use of motor
vehicle' occurring in Section 163A of the MV Act. It is profitable
to reproduce paras 9 to 18 of the judgment herein:
"9. A conjoint reading of the above two
subsections of Sec. 163A shows that a
victim or his heirs are entitled to claim
from the owner / insurance company a
compensation for death or permanent
disablement suffered due to accident
arising out of the use of the motor vehicle
(emphasis supplied), without having to
prove wrongful act or neglect or default of
anyone. Thus, it is clear, if it is established
by the claimants that the death or
disablement was caused due to an
accident arising out of the use of motor
vehicle, then contention of the Insurance
Company which was accepted by the High
Court is that the death of the deceased
(Dasarath Singh) was not caused by an
accident arising out of the use of motor
vehicle. Therefore, we will have to examine
the actual legal import of the words "death
due to accident arising out of the use of
motor vehicle".
10. The question, therefore is, can a
murder be an accident in any given case?
There is no doubt that "murder", as it is
understood, in the common parlance is a
felonious act where death is caused with
intent and the perpetrators of that act
normally have a motive against the victim
for such killing. But there are also
instances where murder can be by accident
on a given set of facts. The difference
between a "murder" which is not an
accident and a "murder" which is an
accident, depends on the proximity of the
cause of such murder. In our opinion, if
the dominant intention of the act of felony
is to kill any particular person, then such
killing is not an accidental murder, but is
a murder simpliciter, while if the cause of
murder or act of murder was originally
not intended and the same was caused in
furtherance of any other felonious act, then
such murder is an accidental murder.
11. In Challis v. London and South
Western Rly. Co., (1905) 2 KB 154, the
Court of Appeal held where an engine
driver while driving a train under a
bridge was killed by a stone wilfully
dropped on the train by a boy from the
bridge, that his injuries were caused by an
accident. In the said case, the Court
rejecting an argument that the said
incident cannot be treated as an accident
held :
"The accident which befell the
deceased was, as it appears to me, one
which was incidental to his
employment as an engine driver, in
other words, it arose out of his
employment. The argument for the
respondents really involves the
reading into the Act of a proviso to the
effect that an accident shall not be
deemed to be within the Act, if it arose
from the mischievous act of a person
not in the service of the employer. I see
no reason to suppose that the
legislature intended so to limit the
operation of the Act. The result is the
same to the engine driver, from
whatever cause the accident happened;
and it does not appear to me to be any
answer to the claim for
indemnification under the Act to say
that the accident was caused by some
person who acted mischievously.
12. In the case of Nisbet v. Rayne & Burn,
(1910) 2 KB 689, where a cashier, while
travelling in a railway to a colliery with a
large sum of money for the payment of his
employers' workmen, was robbed and
murdered. The Court of Appeal held :
That the murder was an accident from
the standpoint of the person who
suffered from it and that it arose out of
an employment which involved more
than the ordinary risk, and
consequently, that the widow was
entitled to compensation under the
Workmen's Compensation Act, 1906.
In this case, the Court followed its
earlier judgment in the case of Challis
(supra). In the case of Nisbet (supra)
the Court also observed that it is
contended by the employer that this
was not an accident within the
meaning of the Act, because it was an
intentional felonious act which caused
the death, and that the word accident
negatives the idea of intention. In my
opinion, this contention ought not to
prevail, I think it was an accident
from the point of view of Nisbet, and
that it makes no difference whether
the pistol shot was deliberately fired at
Nisbet or whether it was intended for
somebody else and not for Nisbet."
13. The judgment of the Court of Appeal in
Nisbet case (supra) was followed by the
majority judgment by the House of Lords
in the case of Board of Management of
Trim Joint District School v. Kelly, 1914
AC 667.
14. Applying the principles laid down in
the above cases to the facts of the case in
hand, we find that the deceased, a driver
of the autorickshaw, was dutybound to
have accepted the demand of farepaying
passengers to transport them to the place
of their destination. During the course of
this duty, if the passengers had decided to
commit an act of felony of stealing the
autorickshaw and in the course of
achieving the said object of stealing the
autorickshaw, they had to eliminate the
driver of the autorickshaw then it cannot
but be said that the death so caused to the
driver of the autorickshaw was an
accidental murder. The stealing of the
autorickshaw was the object of the felony
and the murder that was caused in the
said process of stealing the autorickshaw
is only incidental to the act of stealing of
the autorickshaw. Therefore, it has to be
said that on the facts and circumstances of
this case the death of the deceased
(Dasarath Singh) was caused accidentally
in the process of committing theft of the
autorickshaw.
15. Learned Counsel for the respondents
contended before us that since the Motor
Vehicles Act has not defined the word
"death" and the legal interpretations relied
upon by us are with reference to the
definition of the word "death" in the
Workmen's Compensation Act the same
will not be applicable while interpreting
the word death in the Motor Vehicles Act,
because according to her, the objects of the
two Acts are entirely different. She also
contends that on the facts of this case no
proximity could be presumed between the
murder of the driver and the stealing of
the autorickshaw. We are unable to accept
this contention advanced on behalf of the
respondents. We do not see how the object
of the two Acts, namely, the Motor Vehicles
Act and the Workmen's Compensation Act
are in any way different. In our opinion,
the relevant object of both the Acts is to
provide compensation to the victims of
accidents. The only difference between the
two enactments is that so far as the
Workmen's Compensation Act is
concerned, it is confined to workmen as
defined under that Act while the relief
provided under Chapter X to XII of the
Motor Vehicles Act is available to all the
victims of accidents involving a motor
vehicle. In this conclusion of ours, we are
supported by Sec. 167 of the Motor
Vehicles Act as per which provision, it is
open to the claimants either to proceed to
claim compensation under the Workmen's
Compensation Act or under the Motor
Vehicles Act. A perusal of the objects of the
two enactments clearly establishes that
both the enactments are beneficial
enactments operating in the same field,
hence the judicially accepted
interpretation of the word death in the
Workmen's Compensation Act is, in our
opinion, applicable to the interpretation of
the word death in the Motor Vehicles Act
also.
16. In the case of Shivaji Dayanu Patil v.
Vatschala Uttam More, (1991) 3 SCC 530
this Court while pronouncing on the
interpretation of Section 92A of the Motor
Vehicles Act, 1939 held as follows : (SCC
p. 532, para 12)
"... Section 92A was in the nature of a
beneficial legislation enacted with a
view to confer the benefit of
expeditious payment of a limited
amount by way of compensation to the
victims of an accident arising out of
the use of a motor vehicle on the basis
of nofault liability. In the matter of
interpretation of a beneficial
legislation the approach of the Courts
is to adopt a construction
which advances the beneficent purpose
underlying the enactment in
preference to a construction which
tends to defeat that purpose."
17. In that case, in regard to the
contention of proximity between the
accident and the explosion that took place,
this Court held : (SCC pp. 54950, para
36)
"36. This would show that as compared to
the expression 'caused by', the expression
'arising out of' has a wider connotation.
The expression 'caused by' was used in
Sections. 95(1)(b)(i) and (ii) and 96(2)(b)
(ii) of the Act. In Section 92A, Parliament,
however, chose to use the expression
'arising out of' which indicates that for the
purpose of awarding compensation under
Section 92A, the causal relationship
between the use of the motor vehicle and
the accident resulting in death or
permanent disablement is not required to
be direct and proximate and it can be less
immediate. This would imply that
accident should be connected with the use
of the motor vehicle but the said
connection need not be direct and
immediate. This construction of the
expression arising out of the use of a motor
vehicle in Section 92A enlarges the field of
protection made available to the victims of
an accident and is in consonance with the
beneficial object underlying the
enactment."
18. In the instant case, as we have noticed
the facts, we have no hesitation in coming
to the conclusion that the murder of the
deceased (Dasarath Singh) was due to an
accident arising out of the use of motor
vehicle. Therefore, the trial Court rightly
came to the conclusion that the claimants
were entitled for compensation as claimed
by them and the High Court was wrong in
coming to the conclusion that the death of
Dasarath Singh was not caused by an
accident involving the use of motor
vehicle."
28. In this judgment, the Apex Court has also discussed
the intention, motive and other aspects in order to make a
distinction and to arrive at a prima facie finding whether the
accident falls within the expression 'use of motor vehicle'. The
case in hand is squarely covered by para 10 of the judgment
(supra).
29. In the case titled as Union of India versus
Bhagwati Prasad (D) and others, reported in AIR 2002
Supreme Court 1301, the Apex Court has discussed the
concept of joint tortfeasor and maintainability of claim petition,
jurisdiction of the Claims Tribunal and the expression 'accident
arising out of use of motor vehicle'. Though, the judgment is not
directly applicable to the facts of the case, but the principle is
applicable for the reason that the expression 'use of motor
vehicle' stands thrashed out. It is apt to reproduce relevant
portion of para 3 of the judgment herein:
"3. .......... In our considered opinion, the
jurisdiction of the Tribunal to entertain
application for claim of compensation in
respect of an accident arising out of the
use of a motor vehicle depends essentially
on the fact whether there had been any use
of motor vehicle and once that is
established, the Tribunals jurisdiction
cannot be held to be ousted on a finding
being arrived at a later point of time that
it is the negligence of the other joint
tortfeasor and not the negligence of the
motor vehicle in question. We, are
therefore, of the considered opinion that
the conclusion of the Court in the case of
Union of India v. United India Insurance
Co. ltd., 1997 (8) SCC 683 to the effect
"It is ultimately found that mere is no
negligence on the part of the driver of the
vehicle or there is no defect in the vehicle
but the accident is only due to the sole
negligence of the other parties/agencies,
then on that finding, the claim would go
out of Sec. 110(1) of the Act because the
case would men become one of exclusive
negligence of the Railways. Again, if the
accident had arisen only on account of the
negligence of persons other than the
driver/ owner of the motor vehicle, the
claim would not be maintainable before
the Tribunal" is not correct in law and to
that extent the aforesaid decision must be
held to have not been correctly decided."
30. The Apex Court in another case titled as
Malikarjuna G. Hiremath versus Oriental Insurance Co.
Ltd. & Anr., reported in II (2009) ACC 738 (SC), has discussed
the scope of Section 3 of the Workmen's Compensation Act, 1923
and the expression 'accident arising out of and in the course of
employment'. The Apex Court has also discussed the entire law
dealing with the principles for grant of compensation, which are
applicable in this case also. It is apt to reproduce paras 10 to 19
of the judgment herein:
"10. The expression "accident" means an
untoward mishap which is not expected or
designed. "Injury" means physiological
injury. In Fenton v. Thorley & Co. Ltd.
(1903) AC 448, it was observed that the
expression "accident" is used in the
popular and ordinary sense of the word as
denoting an unlooked for mishap or an
untoward event which is not expected or
designed. The above view of Lord
Macnaghten was qualified by the speech of
Lord Haldane A.C. in Trim Joint District,
School Board of Management v. Kelly
(1914) A.C. 676 as follows:
"I think that the context shows that
in using the word "designed" Lord
Macnaghten was referring to
designed by the sufferer."
11. The above position was highlighted by
this Court in Jyothi Ademma v. Plant
Engineer, Nellore and Anr., V (2006) SLT
457=III(2006) ACC 356 (SC)=III(2006)
CLT 178(SC)=2006(5) SCC 513.
12. This Court in ESI Corpn. v. Francis
De Costa, 1996 (6) SCC 1 referred to, with
approval, the decision of Lord Wright
in Dover Navigation Co. Ltd. v. Isabella
Craig, 1940 AC 190, wherein it was held:
(All ER p. 563 )
"Nothing could be simpler than the
words `arising out of and in the
course of the employment . It is clear
that there are two conditions to be
fulfilled. What arises `in the course
of the employment is to be
distinguished from what arises `out
of the employment . The former
words relate to time conditioned by
reference to the man s service, the
latter to causality. Not every accident
which occurs to a man during the
time when he is on his employment
that is, directly or indirectly engaged
on what he is employed to do gives
a claim to compensation, unless it
also arises out of the employment.
Hence the section imports a
distinction which it does not define.
The language is simple and
unqualified."
13. We are not oblivious that an accident
may cause an internal injury as was held
in Fenton (Pauper) v. J. Thorley & Co.
Ltd., 1903 AC 443 by the Court of Appeal:
"I come, therefore, to the conclusion
that the expression `accident is used
in the popular and ordinary sense of
the word as denoting an unlookedfor
mishap or an untoward event which
is not expected or designed."
Lord Lindley opined:
"The word `accident is not a technical
legal term with a clearly defined
meaning. Speaking generally, but
with reference to legal liabilities, an
accident means any unintended and
unexpected occurrence which
produces hurt or loss. But it is often
used to denote any unintended and
unexpected loss or hurt apart from its
cause; and if the cause is not known
the loss or hurt itself would certainly
be called an accident. The word
`accident is also often used to denote
both the cause and the effect, no
attempt being made to discriminate
between them. The great majority of
what are called accidents are
occasioned by carelessness; but for
legal purposes it is often important to
distinguish careless from other
unintended and unexpected events."
14. There are a large number of English
and American decisions, some of which
have been taken note of in ESI Corpn.'s
case (supra) in regard to essential
ingredients for such finding and the tests
attracting the provisions of Section 3 of
the Act. The principles are:
(1) There must be a causal connection
between the injury and the accident
and the accident and the work done
in the course of employment.
(2) The onus is upon the applicant to
show that it was the work and the
resulting strain which contributed to
or aggravated the injury.
(3) If the evidence brought on records
establishes a greater probability
which satisfies a reasonable man
that the work contributed to the
causing of the personal injury, it
would be enough for the workman to
succeed, but the same would depend
upon the fact of each case.
15. An accident may lead to death but that
an accident had taken place must be
proved. Only because a death has taken
place in course of employment will not
amount to accident. In other words, death
must arise out of accident. There is no
presumption that an accident had
occurred.
16. In a case of this nature to prove that
accident has taken place, factors which
would have to be established, inter alia,
are:
(1) stress and strain arising during the
course of employment,
(2) nature of employment,
(3) injury aggravated due to stress and
strain.
17. In G.M., B.E.S.T. Undertaking v.
Agnes, 1964 (3) SCR 930 referring to the
decision of the Court of Appeal in Jenkins
v. Elder Dempster Lines Ltd., 1953 (2) All
ER 1133, this Court opined therein that a
wider test, namely, that there should be a
nexus between accident and employment
was laid down. It also followed the
decision of this Court in Saurashtra Salt
Mfg. Co. v. Bai Valu Raja, AIR 1958 SC
881.
18. In Mackinnon Mackenzie & Co. (P)
Ltd. v. Ibrahim Mohd. Issak, 1969 (2)
SCC 607, this Court held:
"5. To come within the Act the injury
by accident must arise both out of
and in the course of employment.
The words `in the course of the
employment mean `in the course of
the work which the workman is
employed to do and which is
incidental to it . The words `arising
out of employment are understood to
mean that `during the course of the
employment, injury has resulted from
some risk incidental to the duties of
the service, which, unless engaged in
the duty owing to the master, it is
reasonable to believe the workman
would not otherwise have suffered .
In other words there must be a
causal relationship between the
accident and the employment. The
expression `arising out of
employment is again not confined to
the mere nature of the employment.
The expression applies to
employment as suchto its nature, its
conditions, its obligations and its
incidents. If by reason of any of those
factors the workman is brought
within the zone of special danger the
injury would be one which arises `out
of employment . To put it differently
if the accident had occurred on
account of a risk which is an incident
of the employment, the claim for
compensation must succeed, unless of
course the workman has exposed
himself to an added peril by his own
imprudent act."
19. The above position was again
highlighted in Shakuntala Chandrakant
Shreshti v. Prabhakar Maruti Garvali
and Anr., VIII (2006) SLT 654=IV (2006)
ACC 769 (SC)=2007 (11) SCC 668."
31. The Apex Court in the case titled as Surinder
Kumar Arora & another versus Dr. Manoj Bisla & others,
reported in 2012 AIR SCW 2241, held that rash and negligent
driving of the driver is sine qua non for maintaining claim
petition under Section 166 of the MV Act, which is not the
essential ingredient for maintaining claim petition under Section
163A of the MV Act. It is apt to reproduce paras 9 and 10 of the
judgment herein:
“9.Admittedly, the petition filed by the
claimants was under Section 166 of
the Act and not under Section 163A
of the Act. This is not in dispute.
Therefore, it was the entire
responsibility of the parents of the
deceased to have established that
respondent No.1 drew the vehicle in a
rash and negligent manner which
resulted in the fatal accident. Maybe,
in order to help respondent No.1, the
claimants had not taken up that plea
before the Tribunal. Therefore, High
Court was justified in sustaining the
judgment and order passed by the
Tribunal. We make it clear that if for
any reason, the claimants had filed
the petition under Section 163A of
the Act, then the dicta of this Court in
the case of Kaushnuma Begum (Smt.)
& Ors. (AIR 2001 SC 485 : 2001 AIR
SCW 85) (supra) would have come to
the assistance of the claimants.
10. In our view the issue that we have
raised for our consideration is
squarely covered by the decision of
this Court in the case of Oriental
Insurance Co. Ltd. (AIR 2007 SC
1609 : 2007 AIR SCW 2362) (supra).
In the said decision the Court stated:
"....Therefore, the victim of an
accident or his dependents have
an option either to proceed under
Section 166 of the Act or under
Section 163A of the Act. Once
they approach the Tribunal
under Section 166 of the Act, they
have necessarily to take upon
themselves the burden of
establishing the negligence of the
driver or owner of the vehicle
concerned. But if they proceed
under Section 163A of the Act,
the compensation will be
awarded in terms of the
Schedule without calling upon
the victim or his dependants to
establish any negligence or
default on the part of the owner
of the vehicle or the driver of the
vehicle.”
32. Learned Senior Counsel for the appellant tried to
make the foundation of his case by pressing into service the
judgment made by the Apex Court in the case titled as Lachoo
Ram and others versus Himachal Road Transport
Corporation, reported in (2014) 13 Supreme Court Cases
254. The very foundation is without any basis, as discussed
hereinabove.
33. The Apex Court has examined the scope of Sections
163A and 166 of the MV Act in the case titled as Oriental
Insurance Company Limited versus Premlata Shukla &
others, reported in 2007 AIR SCW 3591, and Bimla Devi &
Ors. versus Himachal Road Transport Corpn. & Ors.,
reported in 2009 AIR SCW 4298, and made a fine distinction.
34. The principle laid down by the Apex Court in the
said judgments is of no help to the appellant for the reason that
the claim petition in hand was filed before the Tribunal in terms
of Section 163A of the MV Act, whereas the petitions filed in the
cases relied upon by the learned Senior Counsel for the
appellant were filed under Section 166 of the MV Act and the
question involved was as to whether the petition under Section
166 of the MV Act was maintainable without proving the
rashness and negligence, which is not the case here.
35. Having said so, the arguments of the learned Senior
Counsel for the appellant are misconceived. Accordingly,
findings returned by the Tribunal on issues No. 1 and 3 are
upheld.
36. Before I deal with issue No. 2, I deem it proper to
determine issue No. 4.
Issue No. 4:
37. Learned Senior Counsel for the appellant has not
questioned the liability and has not even disputed the factum of
insurance. However, the Tribunal has rightly discussed issue
No. 4 and the findings returned on the said issue are to be
upheld. Accordingly, the findings returned by the Tribunal on
issue No. 4 are upheld.
Issue No. 2:
38. The claimants have pleaded and proved that
deceasedDharam Pal was 22 years of age at the time of the
accident and the claimants were 38 and 36 years of age at the
time of filing of the claim petition.
39. It is beaten law of land that multiplier is the best
method to assess the compensation. The Tribunal has applied
multiplier of '15', which is just and appropriate in view of the
Second Schedule appended with the MV Act read with the ratio
laid down by the Apex Court in the case titled as Sarla Verma
(Smt.) and others versus Delhi Transport Corporation
and another, reported in AIR 2009 SC 3104 and upheld by
a larger Bench of the Apex Court in the case titled as Reshma
Kumari & others versus Madan Mohan and another,
reported in 2013 AIR SCW 3120.
40. The claimants have specifically pleaded that the
deceased was earning ` 6,000/ per month and have also proved
the same. Thus, by guess work, it can be safely held that the
income of the deceased was not less than ` 5,000/ per month
from all vocations.
41. In view of the law laid down by the Apex Court in
Sarla Verma's case (supra) and upheld by a larger Bench of
the Apex Court in Reshma Kumari's case (supra), 50% was
to be deducted towards the personal expenses as the deceased
was bachelor.
42. Viewed thus, the claimantsparents have lost
source of income/dependency to the tune of ` 2,500/ per month.
Accordingly, the claimants are held entitled to compensation to
the tune of ` 2,500/ x 12 x 15 = ` 4,50,000/ under the head 'loss
of income/dependency'. The appellantsclaimants are also held
entitled to compensation to the tune of ` 10,000/ under the head
'loss of love and affection', ` 10,000/ under the head 'loss of
estate' and ` 10,000/ under the head 'funeral expenses'.
43. The moot question is whether the Tribunal or
Appellate Court is/are within its/their jurisdiction to enhance
the compensation without the prayer being made for the same?
44. The poor claimants have not questioned the
adequacy of compensation, have been dragged to the lis right
from 29.10.2004 and are still waiting for the day to receive the
compensation. More than eleven years have elapsed, they have
suffered and are still suffering.
45. It would be profitable to reproduce Section 168 (1) of
the MV Act herein:
"168. Award of the Claims Tribunal.
On receipt of an application for
compensation made under section 166 , the
Claims Tribunal shall, after giving notice
of the application to the insurer and after
giving the parties (including the insurer)
an opportunity of being heard, hold an
inquiry into the claim or, as the case may
be, each of the claims and, subject to the
provisions of section 162 may make an
award determining the amount of
compensation which appears to it to be
just and specifying the person or persons to
whom compensation shall be paid and in
making the award the Claims Tribunal
shall specify the amount which shall be
paid by the insurer or owner or driver of
the vehicle involved in the accident or by
all or any of them, as the case may be:
......................"
46. The mandate of Section 168 (1) (supra) is to
'determine the amount of compensation which appears to be
just'.
47. Keeping in view the object of granting of
compensation and the legislature's wisdom read with the
amendment made in the MV Act in the year 1994, it is for the
Tribunal or the Appellate Court to assess the just compensation
and is within its powers to grant the compensation more than
what is claimed and can enhance the same.
48. This Court in a case titled as United India
Insurance Company Ltd. versus Smt. Kulwant Kaur,
reported in Latest HLJ 2014 (HP) 174, held that the Tribunal
:
as well as the Appellate Court is/are within the jurisdiction to
enhance the compensation and grant more than what is claimed.
49. The same principle has been laid down by the Apex
Court in the cases titled as Nagappa versus Gurudayal
Singh and others, reported in AIR 2003 Supreme Court 674;
State of Haryana and another versus Jasbir Kaur and
others, reported in AIR 2003 Supreme Court 3696; The
Divisional Controller, K.S.R.T.C. versus Mahadeva Shetty
and another, reported in AIR 2003 Supreme Court 4172;
A.P.S.R.T.C. & another versus M. Ramadevi & others,
reported in 2008 AIR SCW 1213; and Ningamma & another
versus United India Insurance Co. Ltd., reported in 2009
AIR SCW 4916.
50. It is apt to reproduce para 10 of the judgment in
Nagappa's case (supra) herein:
“10. Thereafter, Section 168 empowers the
Claims Tribunal to “make an award
determining the amount of compensation
which appears to it to be just”. Therefore,
only requirement for determining the
compensation is that it must be 'just'. There
is no other limitation or restriction on its
power for awarding just compensation.”
51. It would also be profitable to reproduce para 25 of
the judgment in Ningamma's case (supra) herein:
“25. Undoubtedly, Section 166 of the MVA
deals with “Just Compensation” and even
if in the pleadings no specific claim was
made under section 166 of the MVA, in
our considered opinion a party should not
be deprived from getting “Just
Compensation” in case the claimant is
able to make out a case under any
provision of law. Needless to say, the
MVA is beneficial and welfare legislation.
In fact, the Court is duty bound and
entitled to award “Just Compensation”
irrespective of the fact whether any plea in
that behalf was raised by the claimant or
not. However, whether or not the
claimants would be governed with the
terms and conditions of the insurance
policy and whether or not the provisions
of Section 147 of the MVA would
be applicable in the present case and
also whether or not there was rash and
negligent driving on the part of the
deceased, are essentially a matter of fact
which was required to be considered and
answered at least by the High Court.”
52. The Apex Court in the case titled as Oriental
Insurance Co. Ltd. versus Mohd. Nasir & Anr., reported in
2009 AIR SCW 3717, also laid down the same principle while
discussing, in para 27 of the judgment, the ratio laid down in the
judgments rendered in the cases titled as Nagappa v. Gurudayal
Singh & Ors, (2003) 2 SCC 274; Devki Nandan Bangur and
Ors. versus State of Haryana and Ors. 1995 ACJ 1288; Syed
Basheer Ahmed & Ors. versus Mohd. Jameel & Anr., (2009)
2 SCC 225; National Insurance Co. Ltd. versus Laxmi Narain
Dhut, (2007) 3 SCC 700; Punjab State Electricity Board Ltd.
versus Zora Singh and Others (2005) 6 SCC 776; A.P. SRTC
versus STAT and State of Haryana & Ors. versus Shakuntla
Devi, 2008 (13) SCALE 621.
53. The Apex Court in a latest judgment in a case titled
Sanobanu Nazirbhai Mirza & others versus Ahmedabad
Municipal Transport Service, reported in 2013 AIR SCW
5800, has specifically held that compensation can be enhanced
while deciding the appeal, even though prayer for enhancing the
compensation is not made by way of appeal or cross
appeal/objections. It is apt to reproduce para 9 of the judgment
herein:
“9. In view of the aforesaid decision of this
Court, we are of the view that the legal
representatives of the deceased are entitled
to the compensation as mentioned under the
various heads in the table as provided
above in this judgment even though certain
claims were not preferred by them as we are
of the view that they are legally and
legitimately entitled for the said claims.
Accordingly we award the compensation,
more than what was claimed by them as it
is the statutory duty of the Tribunal and the
appellate court to award just and
reasonable compensation to the legal
representatives of the deceased to mitigate
their hardship and agony as held by this
Court in a catena of cases. Therefore,
this Court has awarded just and reasonable
compensation in favour of the appellants as
they filed application claiming
compensation under Section 166 of the M.V.
Act. Keeping in view the aforesaid relevant
facts and legal evidence on record and in
the absence of rebuttal evidence adduced by
the respondent, we determine just and
reasonable compensation by awarding a
total sum of Rs. 16,96,000/ with interest @
7.5% from the date of filing the claim
petition till the date payment is made to the
appellants.”
54. Having said so, the Tribunal/Appellate Court is
within its powers to award the just compensation. Applying the
ratio, I deem it proper to enhance the compensation.
55. Having glance of the above discussions, the
claimants are held entitled to total compensation to the tune of
` 4,50,000/ + ` 10,000/ + ` 10,000/ + ` 10,000/ = ` 4,80,000/
with interest as awarded by the Tribunal.
56. The appellantinsurer is directed to deposit the
enhanced awarded amount before the Registry within eight
weeks. The awarded amount already deposited be released in
favour of the claimants strictly as per the terms and conditions
contained in the impugned award after proper identification.
After deposition of the enhanced awarded amount, the same be
also released in favour of the claimants through payee's account
cheque or by transferring to their respective accounts.
57. In view of the above, the impugned award is
modified and the appeal is disposed of, as indicated hereinabove.
58. Send down the record after placing copy of the
judgment on Tribunal's file.
(Mansoor Ahmad Mir)
Chief Justice
December 18, 2015
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